Introductory

1.–(1) This Order may be cited as the Copyright and Performances (Application to Other Countries) Order 2008 and shall come into force on 6th April 2008.

(2) In this Order "the Act" means the Copyright, Designs and Patents Act 1988.

(3) The Copyright and Performances (Application to Other Countries) Order 2007 is revoked(3).

Literary, dramatic, musical and artistic works, films and the typographical arrangement of published editions

2.–(1) All the provisions of Part 1 of the Act, insofar as they relate to literary, dramatic, musical and artistic works, films and the typographical arrangement of published editions, apply in relation to the countries indicated in the second column of the table set out in the Schedule so that those provisions apply–

(a) in relation to persons who are citizens or subjects of, or are domiciled or resident in, those countries as they apply to persons who are British citizens or are domiciled or resident in the United Kingdom,

(b) in relation to bodies incorporated under the laws of those countries as they apply in relation to bodies incorporated under the law of a part of the United Kingdom, and

(c) in relation to works first published in those countries as they apply in relation to works first published in the United Kingdom,

subject to paragraph (2).

(2) Where a literary, dramatic, musical or artistic work was first published before 1st June 1957 it shall not qualify for copyright protection by reason of section 154 (qualification by reference to author).

Sound recordings

3.–(1) Except for the provisions listed in paragraph (2)(a), all the provisions of Part 1 of the Act, insofar as they relate to sound recordings, apply in relation to the countries indicated in the third column of the table set out in the Schedule so that those provisions apply–

(a) in relation to persons who are citizens or subjects of, or are domiciled or resident in, those countries as they apply to persons who are British citizens or are domiciled or resident in the United Kingdom,

(b) in relation to bodies incorporated under the laws of those countries as they apply in relation to bodies incorporated under the law of a part of the United Kingdom, and

(c) in relation to works first published in those countries as they apply in relation to works first published in the United Kingdom.

(2) Where in the third column of the table set out in the Schedule the entry for a country–

(a) includes an asterisk (*), the following provisions of Part 1 of the Act, insofar as they relate to sound recordings, also apply to that country–

(i) section 18A (infringement by rental or lending of work to the public)(4) insofar as it applies to lending;

(ii) section 19 (infringement by playing of work in public)(5);

(iii) section 20 (infringement by communication to the public)(6);

(iv) section 26 (secondary infringement: provision of apparatus for infringing performance, &c); and

(v) section 107(2A) and (3) (criminal liability for communicating to the public or playing a sound recording)(7);

(b) includes a hash (#), the following provisions of Part 1 of the Act, insofar as they relate to sound recordings, also apply to that country–

(i) section 20 (infringement by communication to the public), except that references to communication to the public do not include the broadcasting of a sound recording; and

(ii) section 107(2A) (criminal liability for communicating to the public), except that it does not apply in relation to the broadcasting of a sound recording.

Wireless broadcasts

4.–(1) Except for the provisions listed in paragraph (2), all the provisions of Part 1 of the Act, insofar as they relate to wireless broadcasts, apply in relation to the countries indicated in the fourth column of the table set out in the Schedule so that those provisions apply–

(a) in relation to persons who are citizens or subjects of, or are domiciled or resident in, those countries as they apply to persons who are British citizens or are domiciled or resident in the United Kingdom,

(b) in relation to bodies incorporated under the laws of those countries as they apply in relation to bodies incorporated under the law of a part of the United Kingdom, and

(c) in relation to broadcasts made from those countries as they apply in relation to broadcasts made from the United Kingdom,

subject to paragraphs (3) to (5).

(2) The following provisions of Part 1 of the Act, insofar as they relate to wireless broadcasts, also apply in relation to a country where its entry in the fourth column of the table set out in the Schedule does not include an asterisk (*)–

(a) section 18A (infringement by rental or lending of work to the public);

(b) section 19 (infringement by showing or playing of work in public), but only insofar as it relates to broadcasts other than television broadcasts;

(c) section 20 (infringement by communication to the public), except in relation to broadcasting by wireless telegraphy;

(d) section 26 (secondary infringement: provision of apparatus for infringing performance, &c), but only insofar as it relates to broadcasts other than television broadcasts;

(e) section 107(2A) (criminal liability for communicating to the public), except in relation to broadcasting by wireless telegraphy.

(3) The provisions of Part 1 of the Act do not apply in relation to a wireless broadcast made from a place in a country, referred to in paragraph (4), before the relevant date.

(4) The relevant date in relation to a country–

(a) where its entry in the fourth column of the table set out in the Schedule includes an "(X)", is 1st June 1957;

(b) where its entry in the fourth column of the table set out in the Schedule includes a "(Y)", is 1st January 1996; or

(c) where there is a date next to its entry in the fourth column of the table set out in the Schedule, is that date.

(5) For the purposes of section 14(5) of the Act (duration of copyright in repeats)(8) any wireless broadcast which does not qualify for copyright protection shall be disregarded.

Other broadcasts

5. All the provisions of Part 1 of the Act, insofar as they relate to broadcasts (other than wireless broadcasts), apply in relation to the countries indicated in the fifth column of the table set out in the Schedule so that those provisions apply–

(a) in relation to persons who are citizens or subjects of, or are domiciled or resident in, those countries as they apply to persons who are British citizens or are domiciled or resident in the United Kingdom,

(b) in relation to bodies incorporated under the laws of those countries as they apply in relation to bodies incorporated under the law of a part of the United Kingdom, and

(c) in relation to broadcasts made from those countries as they apply in relation to broadcasts made from the United Kingdom.

Performances

6.–(1) The countries in respect of which the word "designated" is included in the sixth column of the table set out in the Schedule are designated as enjoying reciprocal protection under Part 2 of the Act.

(2) The countries in respect of which the word "deemed" is included in the sixth column of the table set out in the Schedule shall be treated as if they were designated as enjoying reciprocal protection under Part 2 of the Act, except that–

(a) in that Part the term "recording" shall be construed as applying only to sound recordings (and not to films);

(b) the following provisions of Part 2 of the Act shall not apply–

(i) section 182C (consent required for rental or lending of copies to public), insofar as it relates to lending(9);

(ii) section 182D (right to equitable remuneration for exploitation of sound recording);

(iii) section 183 (infringement of performer´s rights by use of recording made without consent);

(iv) sections 185 to 188 (rights of person having recording rights);

(v) section 198(2) (criminal liability for playing or communicating to the public); and

(c) where in the sixth column of the table set out in the Schedule the entry for a country includes an asterisk (*), the following provisions of Part 2 of the Act shall also not apply–

(i) section 182CA (consent required for making available to the public)(10);

(ii) section 198(1A) (criminal liability for making available to the public).

Savings

7.–(1) For the purposes of this article an act is an "excluded act" where–

(a) a person (A) has incurred any expenditure or liability in connection with the act; and

(b) he–

(i) began in good faith to do the act, or

(ii) made in good faith effective and serious preparations to do the act,

at a time when the act neither infringed nor was restricted by the relevant rights in the work or performance.

(2) Where another person (B) acquires those relevant rights pursuant to this Order, A has the right–

(a) to continue to do the excluded act, or

(b) to do the excluded act,

notwithstanding that the excluded act infringes or is restricted by those relevant rights.

(3) Where B, or his exclusive licensee, pays reasonable compensation to A paragraph (2) no longer applies.

(4) Where–

(a) B offers to pay compensation to A under paragraph (3); but

(b) A and B cannot agree on what compensation is reasonable,

either person may refer the matter to arbitration.

(5) In this article "relevant rights" means copyright, the rights conferred by Chapter 4 of Part 1 of the Act and the rights conferred by Part 2 of the Act.

Articles 2 to 6

SCHEDULE

EXPLANATORY NOTE

(This note is not part of the Order)

Part 1 of the Copyright, Designs and Patents Act 1988 ("the Act") confers copyright on the creators of certain works. Part 2 of the Act confers rights on performers and persons having recording rights in relation to a performance. The purpose of this Order is to apply Part 1 of the Act to works originating from other countries and to confer on certain countries reciprocal protection under Part 2 of the Act. In this Order the term "country" includes territories, by reason of sections 178 and 211 of the Act.

By reason of section 153(3) of the Act this Order will not affect works in which copyright already subsists. Further, by reason of paragraph 35 of Schedule 1 to the Act, any work in which copyright subsisted under the Copyright Act 1956 (c.74) is deemed to satisfy the requirements of qualification for copyright protection.

Article 2 qualifies literary, dramatic, musical and artistic works, films and typographical arrangements of published editions for copyright protection where they are connected to the countries indicated in the second column of the Schedule. All of those countries are parties to the Berne Copyright Convention (Cm. 1212), to the Universal Copyright Convention (Cmnd. 5844) or to the Agreement establishing the World Trade Organisation (including the Agreement on Trade-Related Aspects of Intellectual Property Rights (Cm. 3044-6, 3080, 3263-4, 3268-9, 3271, 3275-7 and 3282)) or are member States of the European Community or the European Free Trade Agreement; or otherwise give adequate protection under their laws.

Article 3 qualifies sound recordings for copyright protection where they are connected to the countries indicated in the third column of the Schedule. The protection extends to lending, playing in public or broadcasting if the country of origin is marked by an asterisk. All such countries are parties to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Cmnd. 2425) ("the Rome Convention") or are member States of the European Community or the European Free Trade Agreement; or otherwise give adequate protection under their laws.

Different protection is given to those countries marked by a hash. All such countries are parties to the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty (Cmnd. 3736) ("the WPPT"), but not parties to the Rome Convention. The United Kingdom has not ratified the WPPT, but it has agreed to ratify it along with the European Community and with the other Member States in accordance with Council Decision 2000/278/EC (O.J. No L 89, 11.4.2000, p.6). Protection is therefore accorded to contracting parties in anticipation of the United Kingdom´s ratification on the basis that, upon ratification, those countries will provide protection under their laws.

Article 4 qualifies wireless broadcasts for copyright protection where they are connected to the countries indicated in the fourth column of the Schedule. These countries are parties to the Rome Convention or are member States of the European Community or the European Free Trade Agreement; or otherwise give adequate protection under their laws.

Those countries marked by an asterisk, which receive more limited protection, are parties to the Agreement establishing the World Trade Organisation (including the Agreement on Trade-Related Aspects of Intellectual Property Rights), but not to the Rome Convention. Protection does not extend to wireless broadcasts made before the specified dates. By reason of paragraph 9(a) of Schedule 1 to the Act, protection never extends to such broadcasts made before 1st June 1957.

Article 5 qualifies broadcasts (other than wireless broadcasts) for copyright protection where they are connected to the countries indicated in the fifth column of the Schedule. These countries are member States of the European Community or the European Free Trade Agreement or otherwise give adequate protection under their laws. By reason of paragraph 9(b) of Schedule 1 to the Act, protection does not extend to such broadcasts made before 1st January 1985.

Article 6 qualifies certain performances and persons having recording rights in relation to a performance for protection under Part 2 where they are connected to the countries indicated in the sixth column of the Schedule.

Paragraph (1) grants reciprocal protection to certain countries in respect of their performers and persons having recording rights. These countries are parties to the Rome Convention.

Paragraph (2) applies where it is not possible to grant reciprocal protection, but the United Kingdom is obliged to grant limited protection to performances connected to particular countries by reason of both the United Kingdom and the European Community being party to the Agreement establishing the World Trade Organisation (including the Agreement on Trade-Related Aspects of Intellectual Property Rights), in which case such countries are marked with an asterisk,. or by reason of such countries being parties and the United Kingdom being a signatory to the WPPT.

Article 7 is a savings provision.

This Order uses powers given by the Act and by the European Communities Act 1972 to implement various Community obligations of the United Kingdom. The powers under the Act are also used to implement certain other international obligations.

This Order replaces the Copyright and Performances (Application to Other Countries) Order 2007 S.I. 2007/273 ("the 2007 Order") which is revoked by article 1(3). This Order provides a consolidated list of the protection afforded to other countries. The only substantive changes from the 2007 Order are that the protection given to sound recordings originating from Algeria, Georgia and Vietnam is modified following their accession to the Rome Convention; the protection given to sound recordings originating from China is modified following its accession to the WPPT; wireless broadcasts originating from Algeria and Vietnam are protected for the first time and the protection given to wireless broadcasts originating from Georgia is modified following their accession to the Rome Convention; wireless broadcasts originating from Tonga are protected for the first time following its accession to the World Trade Organisation (including the Agreement on Trade- Related aspects of Intellectual Property Rights); performances originating from Algeria and Vietnam are protected for the first time and the protection afforded to performances originating from Georgia is modified following their accession to the Rome Convention; performances originating from Tonga are protected for the first time following its accession to the World Trade Organisation (including the Agreement on Trade - Related Aspects of Intellectual Property Rights); and the protection afforded to performances originating from China is modified following its accession to the WPPT.